Federal Judge Orders CIA To Turn Over Torture Memo For Court Review

NEW YORK – A federal judge today ordered the CIA to produce, for the court's review, a memo specifying brutal interrogation methods for use on prisoners held in U.S. custody overseas. The judge demanded the government make the memo available to him so that he can determine whether it should be made public pursuant to a Freedom of Information Act (FOIA) lawsuit brought by the American Civil Liberties Union and other organizations. The memo, which is one of the most important torture documents still being withheld by the Bush administration, was written by the Department of Justice's Office of Legal Counsel (OLC) and sent to the CIA in August 2002.

"This memo authorized the CIA to use specific torture techniques – including waterboarding," said Jameel Jaffer, Director of the ACLU National Security Project. "As Attorney General Mukasey has acknowledged, CIA agents waterboarded prisoners because this memo told them that they could. The memo is being withheld not for legitimate security reasons, but in order to protect government officials from accountability for their decisions."

For almost four years, the ACLU has been challenging the government's assertion that the OLC memo could not be released because of attorney-client privilege. The ACLU has argued that the privilege does not apply to a legal memo that the CIA adopted as a matter of policy. At a hearing in January, the judge sided with the government, but he reconsidered his decision after senior officials publicly acknowledged that the CIA had waterboarded three prisoners and after Attorney General Michael Mukasey stated to Congress that the CIA's interrogation program had been authorized by the OLC.

In today's order, the judge wrote, "I have read the materials submitted by the plaintiffs, and realize that I did not give sufficient consideration…to the evidence submitted by plaintiffs to the effect that all or parts of Item 29 may have been incorporated into official practice and policy." Item 29 refers to the August 2002 memo. The judge has scheduled a review of the document on May 12.

"This memo has already been withheld for far too long," added Jaffer. "We are hopeful that the judge's review will ultimately result in the memo finally being released."

In October 2003, the ACLU and New York Civil Liberties Union — along with the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace — filed a request under the Freedom of Information Act for records concerning the treatment of prisoners in U.S. custody abroad. To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA lawsuit.

More information on the torture and abuse of detainees in U.S. military custody and an index of documents received by the ACLU in this lawsuit can be found online at: www.aclu.org/torturefoia

Many of these documents are also compiled and analyzed in a recently published book by Jaffer and Amrit Singh, "Administration of Torture." More information is available online at: www.aclu.org/administrationoftorture

Attorneys in this case are Lawrence S. Lustberg and Melanca D. Clark of the New Jersey-based law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.; Jaffer, Amrit Singh and Judy Rabinovitz of the ACLU; Arthur Eisenberg and Beth Haroules of the NYCLU; and Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.